Court Rules Coastal Commission Has the Power to Unilaterally Designate Environmentally Sensitive Habitat Areas Prior to Certification of LCP and the Power to Regulate Inland Visual Impacts Within Costal Zone Even Up to Four and a Half Miles

On February 6, 2008, the Second District Court of Appeal in Douda v. California Coastal Commission 2008 SOS 936 ruled that an "issuing agency," whether it be the California Coastal Commission or a local government, can unilaterally designate "environmentally sensitive habitat areas" (“ESHA”) prior to the certification of a local coastal program (“LCP”).

While the Court found that an issuing agency cannot deviate from a certified LCP and designate additional ESHA, it held that if an LCP has not been certified, then "allowing the issuing agency to protect natural resources for the benefit of the public by designating new areas when they meet the definition of environmentally sensitive…more closely comports with the declared and salutary purposes of the Coastal Act.”

The Commission, sitting as the coastal development permit (“CDP”) issuing authority because the County of Los Angeles did not have a certified LCP for this area, denied Petitioners' application for a CDP for a 5,804 square foot, 35 foot high two-story single family residence, and accessory structures on property located in the Santa Monica Mountains, approximately four and a half miles from the shoreline, but still within the Coastal Zone. The Commission denied the CDP on several grounds: that "the proposed development would be highly visible to the public traversing Mulholland highway and planned public trails"; that the coastal sage scrub and chaparral on the Doudas' property met the definition of ESHA under the Coastal Act; and that the proposed development would "prejudice" LA County's ability to prepare an LCP for the Santa Monica Mountains and that "CEQA required less invasive proposals."

On appeal from the trial court’s refusal to overturn the Commission’s denial of the CDP, Petitioners asserted that the Commission's authority to designate ESHA was curtailed by Section 30502 of Public Resources Code (California Coastal Act of 1976) which gave the Commission only until September 1, 1977, to designate sensitive coastal resource areas. The Court, relying on the finding in LT-WR, L.L.C. V. California Coastal Com. (2007) 152 Cal.App.4th 770, 790 held that "sensitive coastal resource area" is not synonymous with "environmentally sensitive area" and concluded that the limitation of Section 30502 applied only to designating "sensitive coastal resource areas" and not to the designation of ESAH thereby upholding the Commission's authority to designate ESHA when sitting as the CDP issuing authority.

The Doudas contended that Section 30500, which provides that LCP's are determined by local government, and Section 30512, which limits Commission review of land use plans to conformity with the policies of the Coastal Act, establish that local governments have "exclusive say" over the content of land use plans and LCP's. The Court, however, disagreed, finding that the more reasonable interpretation of those provisions is that although the Commission cannot force a local government to choose one conforming use over another, where, as here, a development "contravenes the policies of the Coastal Act," the Commission has the authority and is obligated to reject such development.

The Court also broadly interpreted Section 30251, which provides the Commission the power "to protect views to and along the ocean and scenic coastal areas," to apply to a broader definition of ‘coastal zone,’" rather than the more limited "coastal areas" urged by the Doudas. The Court applied this broader definition to support its interpretation "that the Commission's power to regulate scenic and visual resources extends inland as far as the boundary of the coastal zone" and would allow the Commission to deny the Doudas’ CDP based on visual resource impacts even four and a half miles inland.